LIMBU BINOD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

1.      The extension of time for the application for Judicial Review be refused; and

2.      The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 28 November 2018 of the Torture Claims Appeal Board (“the Board’s Decision”).  His application is late.  His application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 28 February 2019. His application was filed on 18 February 2025, which is late for more than 3 years and 11 months.  This issue will be dealt with below.

2.  The applicant appeared before the Court on 4 March 2026.  He said that he could not say the Board’s Decision was wrong.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant is a national of Nepal.  He is an illegal immigrant.  He lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by a local gang in Itahari, Nepal because they believed he killed one of their members in a fight.

5.  Details of the applicant’s story can be found in the Board’s Decision. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL002795_2025_files/the_Board's_Decision.pdf

The Director’s Decision

6.  The Director considered the applicant’s claim in relation to the following risks:

a.   risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.   risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.   risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.  By Notice of Decision dated 12 July 2018 (“the Director’s Decision”), the Director refused the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 19 November 2018, the Board conducted an oral hearing.  He had given oral evidence and answered the Board’s questions.

9.  Having considered the evidence, the Board made the findings below.

(1)   His evidence about who were in the fight was vague and inconsistent.  [43]

(2)   The nature of his evidence regarding his difficulties in Nepal was significantly and fundamentally different.  [45]

(3)   Because of the findings above, it is not necessary to consider state protection or internal relocation.  [48]

10.  For the reasons above, the Board dismissed the applicant’s appeal and affirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

11.  The applicant has filed Form 86 dated 18 December 2025 for leave to apply for judicial review of the Board’s Decision.

12.  In support of his application, the applicant did not explain why he was late. He has cited the general legal principles and said that the Board’s Decision is unreasonable; that it failed to make sufficient enquiry about the circumstances in Nepal.

DISCUSSION

13.  As mentioned in paragraph 1, this application is late.  In AW v Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the court has to consider, inter alia, the prospect of success of the intended application.  I shall consider the merits of the applicant’s case.

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  Upon the Court’s enquiry, the applicant confirmed that he could not say the Board’s Decision was wrong.

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

16.  In view of the applicant’s admission before the Court, the grounds under paragraph 12 are insignificant.  They are general and bare assertions, which the Court of Appeal had held to be invalid to challenge the Board’s Decision[2].

17.  In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

18.  I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his application.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1